Pod Save America - Will the Supreme Court Grant Trump Immunity?

Episode Date: April 26, 2024

Tommy, guest host Alyssa Mastromonaco, and Strict Scrutiny’s Leah Litman break down the Trump team’s immunity argument at the Supreme Court, the latest with Idaho’s abortion ban, and why a New York court overturned Harvey Weinstein’s conviction. Plus, the Biden administration makes big moves to help out consumers and workers, and the TikTok ban moves forward. Then, Alyssa shares some behind-the-scenes stories about how picking a VP really works. For a closed-captioned version of this episode, click here. For a transcript of this episode, please email [e-mail] and include the name of the podcast.

Welcome to Pod Save America. I'm Tommy Vitor. And I'm Alyssa Mastromatico. Alyssa, it's so great to have you. We have a packed show today, my friend. Donald Trump, he's just starring in all kinds of legal dramas all over the world. He is, you know, the Secret Service is contemplating what to do if he spends time behind bars. You have the Biden administration taking big moves to help out consumers and workers. We might be banning TikTok.

I don't know. The courts are going to have something to say about that too. And state lawmakers in Arizona finally act to repeal their state's 1864 abortion ban. That feels like a very long time ago, everybody. But first, we're recording this on Thursday afternoon, East Coast time, and it was a day of truly dizzying legal news. In Washington, the Supreme Court heard oral arguments about whether Donald Trump should be immune from criminal prosecution for official acts and what constitutes official acts in the first place. This is very important for the January 6th case. Trump himself was stuck in a court in Manhattan, sitting through more testimony from former National Enquirer publisher David Pecker about the catch and kill scheme. More on that later. And for good measure, New York's

highest court overturned Harvey Weinstein's conviction. And that was just today. On Wednesday, the Supreme Court heard arguments about the Biden administration's challenge to Idaho's ultra strict abortion law and how it interacts with federal laws about emergency medical care. in the new faked electors indictment that goes after Rudy Giuliani, Mark Meadows, and a lot of other goons. So, man, thank God we have strict scrutinies. Leah Whitman with us today. Truly, thank you for being here, Leah. You're saving the podcast. Thank you for having me. Too bad I can't save the Supreme Court. Yeah, you've been trying. First question, did I get anything wrong? So I might characterize the Idaho case as not necessarily just about federal law and preempting Idaho's law, but instead whether women are people and they get to keep their organs. But, you know, details.

It was a yes or no question. Co-sign. Co-sign that, Leah Lin-Min. I co-sign that. Here's my actual first question. What was your big takeaway from Thursday's oral arguments in Trump's immunity case? And what you heard, did it make you feel like it's more or less likely that a January 6th trial will happen before the election?

Way less likely. So the court seems inclined to reject Trump's very broad notion of immunity, which his lawyer said would make a president immune even if they directed the military to conduct a coup. But what they are inclined to do is basically say the court below needs to make some additional determinations before they can conclude that Donald Trump actually isn't immune here. And those additional determinations that a court is going to have to make are likely to prolong the proceedings here until after the election. So basically, you would have to throw this case back down to a lower court and they do a bunch of what hearings make a bunch of decisions and that could take weeks, months? Yeah, so they

would have to do additional briefing where they basically invite the parties to make arguments about whether the allegations in this indictment satisfy whatever legal tests the Supreme Court makes up here. And then assuming that the allegations in the indictment, some of them might fall within the outer bounds of official activity, whether some of those allegations could nonetheless be introduced at trial not to form the basis of criminal liability, but instead as evidence of the president's intent here. And all of those questions, they're just going to take up time because there have to be hearings, briefing, determinations, decisions, and we're already really close to the election. So it's Trump in the calendar versus the prosecution. That's great. Alyssa, over to you.

What a wreck. Leah, can you give us a quick refresher on Trump's immunity claim and how it relates specifically to the January 6th trial? Yeah. So his immunity claim is basically if a president does something exercising the powers of the president's office, then the president cannot be convicted of a crime unless and until the president is first impeached and convicted by the Senate. This is completely nonsensical and would immunize the president from criminal activity given that the Senate. This is completely nonsensical and would immunize the president from criminal activity, given that the Senate is not in the habit of impeaching and convicting presidents. But that's his argument. And so he says, like, yeah, look, sure, I was attempting

to overturn the results of an election. But guess what? I used the Department of Justice to do so. So nothing to see here. Leah, I've got to tell you, I listen to these arguments driving around in my Subaru because I just find it like I drive around, I listen, I try to take it in. And I sometimes, in this one in particular, I'm like, I think I have a comprehension problem. Like we used to take reading comprehension when you were in elementary school. I'm like, this can't possibly be correct. What is the Nixon tie-in? I'm impressed you did not devolve into road rage. But the Nixon... Backcountry roads, girl. Backcountry roads. I can't be in front of... Only squirrels are at risk here. So there are several Nixon tie-ins here, of course. Nixon famously or infamously said,

if the president does it, it's not illegal. Donald Trump's argument is like slightly more nuanced in that he's saying if a president does it, it's an official act and therefore immune from criminal prosecution and therefore effectively not illegal. But the Supreme Court heard several cases involving presidential claims of immunity arising out of Nixon's case. So one was a case involving civil immunity, Nixon versus Fitzgerald. And there, the court said presidents can't be sued civilly, that is by private citizens seeking monetary damages for actions that fall within the scope of their official duties. And

that's just an absolute immunity bar. But the court also decided Nixon versus United States, in which the court said, look, presidents aren't completely immune from criminal process and therefore can be ordered to turn over evidence, you know, as part of this grand jury subpoena. that that seemed to reflect an understanding that, of course, presidents would and could be subject to criminal process if they needed a frickin pardon for violating criminal law. And yet Donald Trump's lawyer was like, no, no, no, you all have it all completely wrong. Presidents just can't be subject to criminal law. I think you both have Trump derangement syndrome. And it makes perfect sense that if I were president on the last day and I was in office, I was getting a ride home from the secret service agents and I get out of the car and then I shoot them all myself and murder them. And then it's the next day and I'm no longer president and I haven't been impeached by the Senate. So I get off scot-free. That makes sense to me.

It is so wild. I actually, I love that everyone focuses kind of on that because I enjoy like the insider trading. This is what he would be doing. I'm like, let's get into the financial examples because I think we all know that's where he would be. But Leah, so here's another one. A vivid and admittedly somewhat extreme example that's come up in the lower court's consideration of the issue is whether a president could order the military to assassinate a political opponent,

for example. Justice Sotomayor asked a version of that question today. Let's listen. If the president decides that his rival is a corrupt person and he orders the military or orders someone to assassinate him, is that within his official acts for which he can get immunity? It would depend on the hypothetical, but we can see that could well be an official act. It could. And why? Because he's doing it for personal reasons. Right. So what did you think of Trump's lawyer's answer there, Leah? I mean, in some ways it was entirely expected. This was a question that he was asked in the Court of Appeals. If the president orders SEAL Team 6 to assassinate a

political rival, are you saying the president would be immune? And Trump's lawyer basically says, yes, unless the Senate impeached and convicted him first. So this is his argument. They did not feel the need to basically trim its sails once they got to the Supreme Court. And I think for good reason. I mean, it seemed to me like there are a majority of justices, the Republican appointees who are willing to endorse some thinner version of immunity and even go so far as to suggest that there need to be additional proceedings in order to determine whether President Trump's attempt to overturn the results of a valid election and refuse to leave office fell within the scope of official duties that are entitled to immunity. And so there's a reason why Trump's lawyer didn't feel the need to basically moderate his position arguing before this court. Clarence Thomas did not recuse himself, right?

Correct. Instead, Clarence Thomas proudly proclaimed that having a bunch of presidents done coups. So what's the big deal here? Got it. Has his wife, Ginny Thomas, stormed the proceedings yet? You know, I was not made aware if that happened, but she doesn't text me like she texts Mark Meadows. Maybe I missed something. That's fair. So Justice Barrett went a different route asking about specific things that Jack Smith is alleging that Trump did and asking whether Trump's lawyers considered those official or private acts. Let's listen to a clip.

So you concede that private acts don't get immunity. We do. Okay. And I want to know if you agree or disagree about the characterization of these acts as private. Petitioner turned to a private attorney who was willing to spread knowingly false claims of election fraud to spearhead his challenges to the election results. Private? As alleged. I mean, we do dispute the allegation, but that sounds private to me.

Sounds private. Petitioner conspired with another private attorney who caused the filing in court of a verification signed by petitioner that contained false allegations to support a challenge. That also sounds private. that contained false allegations to support a challenge. That also sounds private. Three private actors, two attorneys, including those mentioned above, and a political consultant helped implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding, and petitioner and a co-conspirator attorney directed that effort.

You read it quickly? I believe that's private. I don't want to... What did you make of that exchange, ACB asking those questions and the answers? I mean, unlike Justice Alito, she was actually willing to discuss the actual facts of this case and try to determine whether they were within the official activities or official scope of the president's duties. And it was encouraging in some respects that she was able to get a concession from Trump's lawyer that several of the allegations in the indictment conceitedly do not concern official acts. And if that's right,

then a trial is not flatly prohibited here. Instead, the trial could proceed based on the allegations that Trump's lawyer is conceding are not entitled to immunity. And the fight is just going to be about how some of the other allegations can be used here. So, Leah, last question about the immunity case. So everyone seemed to think that Trump's team's case for absolute immunity was pretty weak, but the government's lawyer didn't exactly have a smooth sailing either when it was his turn. A few of the conservative justices pushed him about the fraud statute that the government is using against Trump. Can you explain what that means, why it was unexpected and whether you thought it was a big deal? Yeah. So Justice

Alito in particular wanted to ask the lawyer for special counsel, Jack Smith, whether the fraud statute, the conspiracy to defraud the United States, which is one of the charges that Jack Smith charged Donald Trump with, whether that statute could itself be unconstitutional because it's simply too vague and people don't know what it means. And so that is, I think, showing his hand that even if a trial is allowed to proceed without a blanket form of immunity, it's possible if and when the case goes back up to the Supreme Court that there are some justices who would just say these charges are per se invalid and cannot support a conviction. Wonderful.

So we heard these arguments in late April. Does that mean we'll hear some sort of judgment in what, June, July? So by tradition and custom, the Supreme Court's term ends at the end of June. That is when they try to release all of the decisions in argued cases. But if they wait that long to release a decision in this case, they are all but guaranteeing there will not be a trial before the election. And so I think we should be watching to see whether they are able to issue a decision before the end of May, because that at least holds out the remote possibility of some pre-election trial. Let's hope maybe someone will just leak a copy to Politico like with the Dobbs case.

OK, let's turn to a different courtroom. So meanwhile, Donald Trump is in Manhattan. He's attending his criminal trial for paying to cover up the stormy Daniels affair story. So the DA's team asked the judge to hold Trump in contempt of court for violating his gag order again. Prosecutors presented what they said were four additional violations. Prosecutors now argue Trump has violated the gag order 14 times, I believe. Is that normal? Would any other defendant be allowed to violate a gag order 14 times? Usually they're allowed 10 free violations of gag orders. No, no. Like a punch card? Exactly. Like one violation of a gag order. That's it. There's no kind of like free passes.

It's almost as if this guy believes he is above the law. Did you guys see the story in the New York Times about the Secret Service having like preliminary discussions about how to protect Trump in jail or in prison, jail prison? I don't know if he goes for contempt, because I just want to flag that to get the vibes up, basically. I have to tell you, I would love to be a consultant on this project. Secret Service trying to secure him in prison, I have it all mapped out in my head. He'd have to be in one wing. Secret Service would have to have rooms on either side. He'd have to have 24-7 protection. But I just imagine they do have to be playing this out. It's a possibility. And I would just give anything to be in those meetings. I mean, Alyssa, you were the coordinator in the White House for all things Secret Service. I can't imagine the conference calls and meetings with these guys right now. They must be losing their minds. The funniest thing is I actually, I mean, you remember my stint at Vice. I was there

when Barack Obama was the first sitting president to visit a federal prison. And he wasn't going to prison. Right, right, yeah. And that was like a huge thing. So I cannot, I could not, I would not want to be the Secret Service agents on that rotation. No, 24-hour shifts in a jail doesn't sound very fun. At Rikers, I don't know. No thanks. They probably sent him to like the, you know, Martha Stewart minimum security place.

Yeah, we'll see. So Alyssa, Trump said this morning outside the courthouse that he thinks he can win New York state in a general election. He did a meet and greet with some construction workers this morning in Manhattan. He's been holding rallies in the Bronx, Madison Square Garden. He went to a bodega the other day. What do you make of these campaign stops? He's not really playing for the New York state.

Okay, so a couple things. Donald Trump, not a morning person. So the fact that he got up, I think he hit the, it was like the JP Morgan construction site. I think he hit that between like 6.30 and 7 o'clock this morning. So one, he's scared, okay? He is not doing these stops because he's not scared. Second, it's always about the fine print with him. When he's talking about MSG, I'm like, maybe the Hulu Theater at MSG. That's a capacity of 5,500. But I mean, in terms of whether he could ever win New York as a lifelong New Yorker, I think the last time a Republican won this state was Reagan in 84. And right now, Joe Biden is polling on average 10 points ahead of Trump.

So I feel like we're good. Yeah, he's just smart enough to know where the media is and he's going to go to them like a moth to a flame. Though, I mean, like those are facts and I feel confident in them, but I also don't want to have hubris because New York state is sort of responsible for like the narrow margin in the house right now.

So we won't talk about that. Switching gears again. So yesterday in Arizona, a grand jury handed down an indictment related to the state's fake elector scheme. They charged 11 fake electors themselves, as well as seven Trump aides whose names were redacted. But it was pretty clear who they were talking about. People like Rudy Giuliani, Mark Meadows, etc. Likewise, it was obvious that the anonymous former president named as an unindicted co-conspirator is Donald Trump. Unless Obama has been getting into some shit that we have not heard about. Leah, what does it mean

to be an unindicted co-conspirator? And does this mean Trump will remain one or could he be indicted down the road? Unindicted co-conspirator just means kind of for purposes of fleshing out, you know, the actual facts and giving the grand jury and the jury an idea about what actually happened. You are including some other person's involvement, but for whatever reason, you know, the actual facts and giving the grand jury and the jury an idea about what actually happened, you are including some other person's involvement. But for whatever reason, the grand jury or prosecutor did not decide to indict that person. So he was involved in the scheme, but is not currently facing charges. It is possible he could face charges in the future, whether that's a possibility depends a little bit on when the statute of limitations for the crime

would expire. Got it. And then I saw that Boris Epstein, who's a Trump aide a little bit on when the statute of limitations for the crime would expire. Got it. And then I saw that Boris Epstein, who's a Trump aide, he was indicted in Arizona as part of this fake elector scheme. But he was in the courtroom today in Manhattan. He's been described as the person quarterbacking the legal defense. That seems complicated. No. How does that work? I mean, there's a bunch of lawyers who have been indicted, you know, in the course of Trump's efforts to overturn the election. It's not just Boris Epstein. I think Christine Bob, you know, was also indicted and she was named kind of the person in charge of election integrity for the RNC. So a whole host of characters and certainly being a lawyer does not immunize you from legal process or mean you have the good judgment to avoid trying to overturn an election. this time related to Idaho's unbelievably draconian abortion ban and whether it conflicts with federal law. Leah, can you just give us the basics of Idaho's ban and why the government is challenging it? So Idaho's ban says that doctors can only perform abortions that are actually

necessary to save the life of the pregnant person. What this means is they cannot perform abortions that might be necessary to save a pregnant person's organs or potentially prevent further deterioration of the emergency medical condition that caused the pregnant person to go to the hospital in the first place and thereby risking them potentially becoming closer to death and risking death. And that is what the federal government says violates hospitals' obligations under a federal law, EMTALA, the Emergency Medical Treatment and Active Labor Act, that requires hospitals to provide stabilizing care for emergency medical conditions in order to prevent further

deterioration, in order to prevent serious you know, further deterioration, in order to prevent serious risks to bodily organs or bodily functions. And Idaho is like, nope, we can take a woman's uterus or kidney, pancreas, right? Maybe some stomach, small intestine, large intestine too. As long as she's not going to die, all good. Jesus Christ. There was a moment yesterday where even Justice Barrett confessed to being shocked by an answer that had been given by Idaho's Solicitor General. Can you in Florida, who ended up, you know, after being denied an abortion, put on life support because she lost so much blood, or people who went into septic shock, or people who had to have hysterectomies

because of the amount of bleeding and complications, you know, that followed when they were denied abortions. And Justice Sotomayor kept asking the Idaho lawyer, could this person get an abortion under your law? And the Idaho lawyer basically said, maybe not. Maybe a prosecutor would choose to indict the hospital or the doctor who performed them. At which point Justice Barrett said, this is shocking. To which I say, sweetie, like, have you been paying attention for the last two years? I mean, on some level, like it's good, right, that she's shocked. On the other hand, it's like face-eating leopards are going to eat your face too, Amy. Yeah yeah there's been a lot of reporting about this kind of these scenarios that you're mentioning um alissa you and aaron have covered you know the fight over abortion bans in many

states in amazing detail on hysteria uh which everyone should check out and subscribe to obviously yes why why is this case do you think important beyond idaho what does it tell us about the stakes and the momentum for each side? There's so much. Like what Leah was just saying, this is bullshit. Like these laws and people, we're getting incredibly graphic and gruesome examples of how wrong these are. You know, Republicans try to sound very middle of the road by saying, of course, the life of the mother, you know, exceptions for rape and incest, except the caveats around them are bullshit. Doctors, these are the same states where there are huge penalties for a doctor who could

potentially perform an abortion that someone could sue later and say, oh, that wasn't actually, they weren't close enough to dying, right? So on the one hand, these cases, I think, are showing the world what is really meant by these bans and how disingenuous a lot of the sort of caveats and the exceptions around some of these things that they say to try to make them sound wholesome, and they're not. They're trash. And also, I think that if you, I mean, and actually, Leah, I have a question for you. I have to throw this back to you. I really feel like the supremacy clause is having a moment, because it has always been, like, the supremacy clause, like, how is this even an issue with EMTALA? Like, why are they trying to do this? But what's their beef with the supremacy clause now? They're challenging it left and right. Court and says there's a federal law, EMTALA, that requires hospitals to provide stabilizing care.

And the state says, but we don't want to apply stabilizing care when that stabilizing care is an abortion. And when federal law says one thing that is inconsistent with state law, federal law is supposed to win out. There's a similar dynamic happening in the immigration case where you have Texas passing SB4 and then interfering with federal immigration officers attempts to enforce federal immigration law. And I think the supremacy clause, Alyssa, has moments when Democrats hold office because the Republican Supreme Court doesn't like to recognize that Democrats get to exercise political power and hold political power. And so in those instances, they say, well, of course, Texas gets to determine federal immigration policy rather than the Biden administration. And of course, Idaho gets to

determine, you know, whether women can receive abortions that are necessary to save their organs rather than the federal law that Congress passed during the Reagan administration, by the way. And so it is just a further effort to impede, I think, Democratic administration's ability to govern. And that is the threat that this super majority Republican controlled Supreme Court poses. Oof, man. Okay, last piece of truly shitty legal news in this cornucopia of truly shitty legal news is that the New York Court of Appeals overturned Harvey Weinstein's 2020 rape convictions. Leah, can you help us understand what happened here? What happens to Harvey Weinstein's 2020 rape convictions. Leah, can you help us understand what happened here?

What happens to Harvey Weinstein now? Does he go to prison in California instead? He's not released, right? No, he's probably not going to be released. The court overturned his New York convictions on the ground that prosecutors had impermissibly been allowed to introduce evidence of prior bad acts for which he was not charged. And those prior bad acts were other sexual assaults. And the court ruled four to three that those previous sexual assaults were not relevant to an issue at the trial, namely Harvey Weinstein's intent. The decision doesn't mean Harvey Weinstein is going to go three, obviously has the California convictions, and it's likely he will, you know, still be in jail while New York attempts to retry him. But I think the dissenting opinion or one of the dissenting

opinions got it right when they basically raised the alarm that the majority opinion just inhabits this fantasy world that imagines when people make an accusation of sexual assault, a jury and people will necessarily believe them. And therefore, there's no need to introduce evidence of someone's prior bad acts in order to establish their criminal intent and willingness to, you know, forcibly assault someone, you know, without their consent. And so it was a disappointing decision. But that was what the court did. So, Alyssa, I mean, everything you read about this guy, he sounds very guilty, seems like an incredibly bad person. What do you think this news means for the broader Me Too movement, efforts to hold people

like Harvey Weinstein accountable? And just, I don't know what it does to how people feel, like the morale of seeing someone like this seem to catch a break from the New York Supreme Court. Look, it's not good. It's not good, Tommy. It's not good. I think that honestly, and like Leah chime in, to me, it feels a lot like when Roe fell a little bit. Like, guess what, guys? It's not done. The fight's not over. We have to keep our foot on the gas.

You know, just because we had a couple of, you know, marches and people wore pink hats doesn't mean that everything is all good and we can just move on. And it's why elections matter and we have to keep voting. And, you know, Harvey is just, Harvey is a blip. Harvey is a blip. And we just, we can't let, we can't let this one, well, there are many, but we can't let this derail us. You know, we have to stay motivated. All right. Well, Leah, we truly cannot thank you enough for being here. You made this show exponentially smarter. So thank you.

And everyone should subscribe to Strict Scrutiny. Truly like one of my favorite shows ever. So thank you again. Thank you so much for having me. All right. We're going to take a quick break. When we come back, though, Alyssa and I will talk about what President Biden has been up to, what happens next after Congress actually passed a TikTok ban, and the cloak and dagger madness that goes into the vice presidential selection

process. You will not want to miss it. So stick around. All right, Alyssa. So some less headline grabbing, but actually good news while all this legal drama unfolds is that the administration has been busy rolling out requiring airlines to issue cash refunds for canceled and delayed flights and to do it quickly. Anyone who's ever lost an airline voucher for hundreds of dollars knows how big of a deal that is. Then the FTC banned non-compete agreements for most new workers. So right now, one in five workers face a non-compete. And then lastly, today, the EPA issued a new regulation on coal power plants, requiring them to cut their emissions by 90% by 2039 and tighten rules on other types of

pollution from these plants. So obviously, that's critical for climate change mitigation. The coal industry says they can't get to that emissions target by 2039, and that this whole effort is basically an effort to stamp out coal power in the U.S. altogether, which doesn't make me sad. Yeah, seems fine. All right, Alyssa. So these regulations, they're obviously the right thing to do. They're great for consumers. But the question becomes, how do we make sure voters actually know about them? Any recommendations for the Biden team for actually selling some wins here?

Tommy, listen, before we recorded today, I was telling you how I like to print things out and highlight them. Okay, my advice for the Biden administration is borderline that basic. I want to turn on AM FM radio, and I want to hear people talking about this. Do you know that 88% of Americans listen to AM FM radio every week? Wow. That's 293 million people. You know what else they should do? They should take out ads or write articles or op-eds for AARP magazine. You want to know why? You want to know why? 38 million readers. So I think they need to go very guerrilla, very worm's eye view and just, and do the things that people don't think are cool. Because I actually think that in some ways that's how people are consuming information. Totally. No, I'm with you. Listen, like people

hate the airlines. And if you hate airlines, you really hate airline vouchers because you're never allowed to use them. They're always like some reason you can't do it. You can't find them in your stupid app. So like, I love this rule. This is one of those things Biden did where I was like, why didn't we do that in the Obama days? That's so smart. I'm glad they did it. I agree with you. Like, I do think this is fodder for a funny, tight digital ad too. Like you find, find something like make a, you know, find someone who got screwed over or missed Christmas or whatever. People who don't care about politics remember that Trump sent them a check, right? Yes. Yes. Tommy, this is exactly what I'm talking about. There should be billboards in airports.

There should be, when you go into a hotel and they have the scrolling screen of what weddings and which ballroom, it should be up there telling people exactly how they can like protect their vacations. People save up for a year or years to go on a vacation that can be utterly fucked because of like an airline's malfeasance. This is real money for people. And so I think it's a real, if they don't try to get this out in every way, this is the thing that people could potentially remember. Totally. This is discreet. It's memorable. People will love it. The non-compete clause stuff is, it's a bigger deal for the labor market generally, but I think there's going to be a long

legal fight. So people aren't necessarily going to feel this in their lives anytime soon. But again, like this is where I would love to just see them lean into the fight. You know, you find some fast food workers who are harmed by a non-compete. You tell their stories in an ad. You lean into the legal case. Make the Chamber of Commerce the enemy here. Find a villain. Demagogue this.

People remember stories like that. They resonate. They do. And it's like with everything, even just back to the travel vouchers, everything that's been going on with Boeing, why should a company that's making so much money, why should people who have saved up for an airline ticket to go to Disney World or visit their sick relative be the ones who are put out? And so I just, to me, this feels like, yes, yes, yes, yes, yes. This is a yes. All of it. Yes, yes. So the question, I guess, again, is like by Election Day, I imagine we'll be talking about sort of higher stakes issues, more thematic issues like abortion access, like the future of democracy. What do you think? Do you think Joe Biden should be running a bunch of ads in October about how, you know, Joe Biden stuck it to United on your behalf? Or you think it's going to be, you know, all row by that time?

They should be fighting on every front, right? Because, Tommy, people are motivated by all different kinds of things to show up at the polls on Election Day. So yes, there are people who will be super motivated to save democracy. There are people who understand that every vote is a potential vote to bring back Roe. And so, you know, I think that they can't take anything for granted and they should have a strategy for each of these issues. Yeah. So also this week, President Biden signed the bill that would ban TikTok if ByteDance, the parent company to TikTok, doesn't sell it within the next year. Casey Newton, great reporter for Platformer, wrote an interesting piece about just how

much legal risk there actually is for the government's case here. The gist is that TikTok is likely to have a strong First Amendment argument against getting banned. The Supreme Court has previously found that Congress can't ban foreign propaganda, including specifically Chinese propaganda. So they'll have a case. Casey also points out that the government's other argument, which will be about data privacy, could also be weak given that the United States doesn't have any kind of national data privacy law. So the suggestion that, you know, banning TikTok will fix that is silly. Like China could just go out and buy some data from data brokers. So let's just big picture, where do you

land on this decision, whether it's the right or the wrong thing? Like I get obviously the national security concerns, but I also do feel very bad for people who built a business on TikTok, who have big followings, or who just rely on it for a sense of community that they just can't find where they live. Well, Tommy, first and foremost, couldn't we find something else to ban? Like, I don't know, assault weapons? That would be great. I'd rather do that. Let's ban assault weapons. That's a good idea. kind of is, right? Like TikTok has, I think it's like 170 or 150 million US users. So someone's going to buy it? I mean, come on. Like, I think that because right, that is the issue. It has to, it will be banned if it is not bought by someone in the US. And so, I mean, I don't know. I guess I'm not too worked up about it. This feels like something that's going to get resolved because there are like 170 million people here who love it. And, you know, I'm hopeful, too. I mean, there's a Reuters report out today where they talked to a bunch of sources at TikTok that say that they would rather exit the U.S. market than sell it because ultimately they feel like the algorithm is the secret sauce of TikTok and their algorithm is actually associated with a bunch of other bite dance companies that we don't use that

are used in China. I don't know that I necessarily buy that. I don't buy that. The US market's a lot of cash, man. And I think a lot of people want to be here. But just to take on the congressional and the administration's argument. I mean, I've obviously not seen any of the intelligence that elected officials saw. It sounds like it was pretty compelling. You know, we had Katie Porter in here who saw the intelligence, thought it was compelling, but thought the government hadn't made the case yet. I mean, the government's concerns are twofold. There's the question about data privacy and whether the Chinese Communist Party could go to ByteDance and say, I need this person's, what, keystroke log or something. And then there's the question about

whether TikTok could be used as a propaganda tool to shape US public opinion. The public opinion question is interesting to me because there's an organization called Network Contagion Research Institute at Rutgers University. They looked at popular hashtags in search terms. So some of them were like Taylor Swift or Trump. And they found that there were basically two Instagram posts for every one TikTok posts about those topics. But when you got to topics that were banned in China, the ratio changed. So it was eight to one when it came to the Uyghurs. So eight posts on Instagram to one post on TikTok, 30 to one for Tibet, 57 to one for Tiananmen Square, 174 to one for the Hong Kong protests. So you're picking up what I'm putting down here.

Picking up what you're putting down. Stuff the Chinese Communist Party doesn't like ain't going viral on TikTok. So look, your broader point is a good one. I hope that Congress doesn't look at this and just decide, I hope that Congress doesn't look at this and just decide like, great work, boys and girls. We just we solve social media, right? Because our issues are not TikTok. It's about data privacy, protecting kids, understanding the mental health impact of social media, especially on young girls. So this is way bigger than TikTok. But, you know, this sort of anti-China sentiment allowed them to pass the first major tech

regulation in, what, a decade? Yeah. And you know, the other thing, though, Tommy, I was going to say is that going back to 2020, Microsoft, because this has come up before, right? And so back in 2020, Microsoft was getting together with Walmart, and they were like, you know, let's do this. And then that didn't happen. But like, here's the one thing that makes me a little nervous is it's kind of like careful

what you wish for. Right. Because one of the people putting together a bid right now with multiple investors to buy TikTok is Steve Mnuchin. Former Treasury Secretary for Donald Trump. Yeah, he's probably gonna get some Saudi money in there too. Right. So, you know, it's just it's kind of like, OK, if the even though I was a little bit

light in saying, you know, I think that someone's obviously going to buy it. There are like real roadblocks to that, too, because it couldn't a meta trying to acquire it would probably not get approval. You know, that would probably be seen as problematic. Same with Amazon. So it will require probably someone like a Steve Mnuchin to put together the money. But then can you say, well, we don't want Steve. It wouldn't be Steve Mnuchin owning it, but it's still not great. No, that's a really good point because

you're right. The companies that can afford it would have antitrust issues. So you are probably looking at some hodgepodge of investors with big backing. And someone like Simeon Nukin would, yeah, I don't want him with the keys to the algorithm either. So Donald Trump's trying to use this for political advantage, obviously. On Monday, he truthed, quote, just so everyone knows, especially young people, crooked Joe Biden is responsible for banning TikTok. Accurate, but not subtle. So Trump clearly thinks the ban can give him a political advantage with young people. The argument he's making is obviously complicated by the fact that in 2020, Trump himself issued an executive order trying to ban TikTok. Yeah, that EO was later blocked

in court by a judge that Trump had appointed. How much political risk do you think this TikTok ban creates for Biden? I don't think it's that much risk because it's weirdly the issue that's like united Democrats and Republicans. So I don't think it's great for Biden, but I do think that that gives him some cover. Yeah. There was a little bit of polling on this back in the day. So there was 38% support for banning TikTok, 27% opposed in a poll in December of 2023. But the support number had dropped from 50% in March of 2023 to 38%. So it was going down. But to your point about this actually united Republicans and Democrats for once, that's

because the only thing that seems to unite these guys is kind of Cold War 2.0 anti-China sentiment, right? And if Biden makes this part of a broader message about getting tough on China and says Trump is weak because he wanted to let the CCP keep their propaganda tool in the US and keep your kid hooked on it, I mean, that could be a powerful argument too. Totally. It's also weird that they passed this thing in seven weeks. That is like lightning fast introduction Introduction to passage. Like, like you can't get like hurricane disaster funding that fast. Right. Right. Um, last question at all. Sometimes. Yeah. Or another

problem. So last thing, last thing on this list, uh, the Biden campaign says it's going to keep using Tik TOK, even though they're banning it through the election, they're putting in some sort of enhanced security measures. Does that bother you? You think anyone cares? I mean, I don't think anyone really cares. I don't really care. But I think the bigger question is like, what are the enhanced security measures and can we get them?

Right. And also, I mean, if they think TikTok is juicing the algorithm now, what's going to happen when Joe Biden is trying to post stuff on it later? Right. So I feel it's kind of like, whatever, do what you got to do right now. That's how I feel. Do what you got to do to win. Two quick things before we go to break. One, Pots of America is hitting the road this summer. The Democracy or Else book tour begins in Brooklyn on June 26th, followed by Boston on June 28th. We're also going to Madison, Wisconsin, Phoenix and Arbor and Philly.

So come see us. You can find all the tour dates and get tickets at crooked.com slash events. Also, if you loved Alyssa Mastromonaco on this episode, and of course you did, make sure you tune in to Hysteria, where she and Aaron Ryan cover everything from abortion rights to the weird interaction

they had with the dude in the parking lot, to politics, to culture, and more. Also check out Hysteria on YouTube. Their This Fucking Guy series is incredible and blown up on YouTube. New episodes of Hysteria drop every Thursday. Make sure you subscribe wherever you get your podcasts. All right, last topic here. So we talked on our live show on Sunday about the Trump VP hunt, the selection process. You didn't get to weigh in. So I wanted to pick your brain on this and then just do some Alyssa story time. So who are you putting your money on right now in terms of the potential VP candidates? Who's your favorite? Who did you put your money on? I got to know.

I mean, I tried to stir the pot a little bit. So I said Tulsi Gabbard could be interesting in terms of just like generating a story, bringing on someone who was once a Democrat, showing that you're bipartisan. I don't think that's a good idea. I wouldn't do it if I were him, but. No. See, I think that for Trump, like, look, he has so much legal trouble right now. He's going to draw this out as long as humanly possible. He is going to wait until he feels the tidal wave a-coming with one of his legal things, and then he's going to throw this into the universe. And I have to say, if I picked someone, because, you know, he loves a beauty pageant, he loves central casting casting he loves all of

it i'm going with christy gnome okay that's i think aaron was there too was she okay i you know she and i actually have not talked about it christy gnome fits the bill she is uh attractive which matters to him you know i think south dakota's had a republican governor since like 2015 or something like that so you know you know, and Lieutenant Governor anyway. So there's no like risk. It wouldn't be like a Cary Lake situation. So yeah, I'm going to go with Kristi Noem. That's good.

I mean, you know, sticking in the region, Doug Burgum could be your pick and he could write you like an unlimited check. Because I think if you're on the ticket, you can write as much as you want to yourself and he's worth hundreds of millions of dollars. So there's that. But you're right.

I mean, Trump, look, he's a lot of things. She's a little, she's a little abortion fairy dust too. Right. It's like, she's a woman. Yeah. Which to him is like,

will sell to people that he maybe isn't as bad as he says he is. But, you know, I think there's a little like, look, I can't be that bad. I've got a woman with me. Yeah.

That is absolutely the case. And he views it all. It's sort of optics and, you know, so-and-sos from central casting. You're right that he is, look, the guy's good at manipulating the press. He doesn't care about lying. So he's going to drag this out. He's going to leak a short list. He's going to add people. He's going to remove people. He's going to say, dance for me. He's

going to elevate their profiles. Yeah. And it makes he, if he sends the vague Ramaswamy to a state to campaign for him, that's one thing. But if the vague goes out and campaigns for you in a swing state and you leak in advance that he could be the vice presidential nominee, that's going to get more attention. He's going to raise more money for you. Right? Like there's no downside for Trump. No, none whatsoever. And he can honestly let this go as long as he wants to. It really, he can just, he can do it whenever the spirit moves him. Float away until the convention. OK, so Alyssa, you oversaw the VP selection process in two different campaigns, both for John Kerry and for Barack Obama. Let's start with Kerry. How did he view the process? And like, given that literally every political reporter in the country is desperate to break this news. Tell us about some of the cloak and dagger shit you had to do to keep it secret.

So it's funny, because of the Kerry days, it's how Jeff Zeleny and I became friends, because he's always been on the VP beat. We were both little babies back then. CNN reporter, then New York Times, I believe. Then New York Times. And so, you know, I worked for John Kerry back when Al Gore was considering him as a running mate in 2000. And Gore did this thing that was like a little uncool where he wanted Joe Lieberman to be the big surprise. And so there was a lot of leaking that it was going to be John Kerry. And I was like with John Kerry when it was announced that it was Joe Lieberman. And it was not great. Just shitty.

And so when – it was, you know, it's like you understood kind of what Gore was doing, but it really informed how John Kerry wanted to run the process then when he became the nominee in 2004. And he was like, I never want anyone to feel the way that I felt. And so, Alyssa, since you were like there with me, I want you to do this. And I want it to be such a secret. Literally, Tommy, we did such cloak and dagger stuff that people, reporters, thought there was a period of time before the convention, I think. John Kerry was getting a little work done on his teeth. And all the reporters were convinced that the meetings were actually happening in the

dentist's office until they saw his new teeth. But we were doing, I mean, we had Bob Graham. I ate Chinese food with Bob Graham, you know, a senator, then senator from Florida. He had this diary, remember, that everyone, he would write everything, everything he did in the diary. So we were waiting for John Kerry and and he was writing down. And my friend who used to work for him, she's like, girl, you and that Chinese food order are now in the diary. So you were just hanging out with him somewhere?

I hung out with all of these people. Because the thing is, the way we would do it, say John Kerry, good example was Tom Vilsack. He was meeting with then governor of Iowa, Tom Vilsack. So if Kerry was going to meet with Vilsack, let's say five o'clock in the afternoon, I'm getting Vilsack into the hotel upstairs with the full baseball hat, the whole thing, like three hours earlier. So I had the loveliest conversation with Tom Vilsack. He was like, tell me about yourself. Because I think he actually went to school in upstate New York. So all of these people, it was like, you know, Bob Graham, the reporters figured out that John Kerry, they thought John Kerry was meeting

with someone. I physically pushed that man into a car and threw his jacket over his head and was like, go, go, go. It was like my little Olivia Pope moment. I was like, I can't believe it. You're like kidnapping him basically. Totally. And so the thing about it is of all the people John Kerry met, we met them all over the country. We brought people to unexpected sort of locations where no one would see them like at the airport and think, oh, like why is so-and-so here? And then like, when we announced John Edwards, nobody knew. Yeah. Like nobody had an idea that it was going to be John Edwards. None of the meetings leaked in 2004. That is an amazing accomplishment, truly, for people to understand. I mean, like everyone is

watching this process and there's a lot of people read into it and keeping that from leaking is amazing. How did Obama's process differ from Kerry's? and keeping that from leaking is amazing. How did Obama's process differ from Kerry's? So it actually didn't differ much at all. He had fewer meetings with people than Kerry did. Kerry, I think I personally was there for like five or six meetings with Kerry. And with Obama, I think he did three.

And the thing is, things had come a long way since then, especially because Jeff Zeleny had been iterating. He's like, let's look at airports. Let's see where people are flying in and out of to the point that it wasn't Joe Biden. One of the people, it might have been Evan Bayh, someone that Barack Obama was meeting with, I was like flying them into a different city's airport so that they couldn't. I think we used like East Philadelphia Airport. Oh, it might have been Joe Biden.

We used East Philadelphia Airport for Axelrod, David Axelrod and David Plouffe to go see Joe Biden. Even staff members who were going to see some of these candidates, we were being super trusting nothing because everybody had sort of picked up on the tricks because I was very- Were these guys tracking the tail numbers of private planes? Or are you talking about like sending a staffer to a public airport in the wrong city? They were tracking, because at this point, no one's flying commercial for this sort of stuff. They were tracking tail numbers to and from, you know, if there had been rumors of, you know, Tim Kaine, for example. People are checking the D.C. airports. They're checking the

Richmond airport. You know, I think we actually busted, I think one of our colleagues, Ted, Ted busted Tim Kaine out of his house without his family even knowing, you know, because Barack Obama, the thing that then Senate, then Senator Obama felt was that what John Kerry did was so honorable, right? Because you want to have the freedom to have conversations with people, but then not have them be humiliated for having agreed to be part of the process, right? Nobody wants to be like, oh, yeah, I didn't make the cut. And so I think that that was very respectful. And then if you look at Donald Trump, he has done the exact opposite of anyone ever. This is just a apprentice-like beauty pageant, which I, even for Republicans, I just

think is really, it's like sad. It's like mean. To your point about the kind of giving these people some proper respect. I mean, you're not only holding out the hope that you might be the next vice president of the United States. You are asked to turn over all your financial details, these like unbelievably intrusive vetting forms. I mean, it's like a security clearance on steroids, right? I mean, like hundreds and hundreds of pages, everything you've ever done that might possibly be leaked to the press and be embarrassing to the campaign. Totally. There was one story. So for the Obama search, I was in the headquarters the whole time. I had people who I totally trusted who were out in the field sort of making these meetings happen. But the best phone call I got was from one of our dear friends, Jess, who was like, AM, Joe Biden,

he had aviators on and a baseball hat and he got off the plane before I was there. And there was like a tour group that had come on a chartered flight into, I think we did the Biden meeting in Minneapolis. And all of these like older Americans are like on a bus and see Joe Biden. And she was so worried that we'd been busted because him trying to look incognito was actually like a beacon of Biden-ness. Just looked like himself. Yeah. Totally. Yeah. We could have given some different glasses next time. Yeah. I mean, my, my final memory of that, of that whole process list was just like the night before trying to go to bed. I had my phone on and like reporters were just like rolling calls into my cell phone. It's like, guys, I'm not going to

answer this. I'm not going to tell you who it is. I don't even know myself. I know there's three speeches. No, I knew there were three speeches. There were three speeches. I didn't even know until I had to have the charter company on hold. And, and just got the airport that was all i was told and it was just a couple of hours in advance so a couple hours in advance you don't even know who's getting on the plane you chartered that's how secret it was yeah someone bring me back i want to do it again yeah i did in hindsight it was very fun i mean i think the final question is i mean i think what i'm wondering is does donald trump really want to do something interesting does he really want to shake things up or does he just want someone who won't outshine him, who won't cause problems? And

he's going to be like, all right, J.D. Vance, you know? Probably. I mean, I think that here's the problem with Trump is that because nothing he does is genuine or guided by logic or reason, we have no idea why he's going to end up picking someone. You know, I mean, he could be around the MyPillow guy who's going to be like, pick J.D. Vance, you'll win Ohio. You know, like, like, like, he's so susceptible to any sort of like, last person you heard. Yeah, that it's that it'll be it'll be interesting. But for some reason, I really do think he's going to pick a woman. Okay, well, let's, we will, I'm sure be talking about this again. But Alyssa, thank you so much for hosting today. Thank you again to

Leah Littman. I had a blast. Let's do it again soon. Totally. If you want to get ad-free episodes, exclusive content, and more, consider joining our Friends of the Pod subscription community at crooked.com slash friends. And if you're already doom scrolling, don't forget to follow us at Pod Save America on Instagram, Twitter, and YouTube

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